Douglas McConnell, a criminal defence solicitor with over 20 years of experience, believes that Scotland’s safeguards against wrongful convictions are eroding. He notes that while some changes to the criminal justice system have been positive, such as improved treatment of victims and vulnerable witnesses, others have raised concerns among practitioners.
One of the key safeguards that has been diluted is corroboration, which requires independent evidence to support an allegation. While technically still in place, many practitioners feel that it has been weakened through judicial developments, statutory exceptions, and evidential workarounds.
Scots law originally introduced corroboration to minimise the risk of error, but reforms have altered its application.
Changes to Evidence
The use of recorded statements, prerecorded evidence, and other forms of prior testimony has also increased, which can serve important purposes but can also make exceptions feel less exceptional. He cites a case where the complainer did not attend trial, but the prosecution proceeded with evidence gathered earlier in the process.
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In this case, the defence position was that the allegation was false, but the opportunity to examine the complainer through direct questioning and cross-examination was absent. Instead, attention focused on the explanation offered by the accused, which he believes is not the primary concern of criminal justice.
Primary Obligation of Criminal Justice
According to McConnell, the first obligation of criminal justice is to avoid convicting the innocent, and everything else follows from that principle. He is not suggesting that miscarriages of justice are commonplace, but rather that reform should be assessed by what may be lost along the way.
If securing more convictions comes at the cost of weakening protections against wrongful convictions, then the system has not improved. A system that occasionally fails to convict the guilty is regrettable, but a system that convicts the innocent is intolerable. He believes that the conviction of an innocent person is no longer a remote possibility, but a real concern.
The solicitor’s concerns reflect a broader unease among practitioners about the balance of criminal trials. The law has historically recognised the dangers inherent in criminal accusations, including the possibility of lies, sincere but mistaken testimony, and flawed perception. The solicitor notes that the balance between efficiency and fairness remains delicate.
